Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co.

[*1] Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. 2012 NY Slip Op 51276(U) Decided on June 27, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 27, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2011-29 Q C.

Mega Supplies Billing, Inc. as Assignee of SANTOS FLORES MARTINEZ, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered November 15, 2010, deemed from a judgment of the same court entered December 13, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 15, 2010 order granting defendant's motion for summary judgment dismissing the complaint and denying plaintiff's cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant's motion for summary judgment dismissing the complaint and denying plaintiff's cross motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

In support of its motion for summary judgment, defendant submitted affidavits by employees of its special investigative unit which were sufficient to establish that letters [*2]scheduling examinations under oath (EUOs) and denial of claim forms, which denied plaintiff's claims on the ground of plaintiff's failure to appear for scheduled EUOs, had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmation by one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

An appearance at an EUO is a condition precedent to an insurer's liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). While plaintiff maintains that an insurer must advise an applicant that its failure to appear for an EUO will be excused where the applicant provides reasonable justification for the nonappearance, we find no basis in the regulations for imposing such a requirement (cf. Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). Thus, the Civil Court properly granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

Accordingly, the judgment is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 27, 2012